PROPERTY IN SOCIAL CONTINUITY

Dari mano titiek palito From where did the candle drip?
Dibaliek telong nan batali Behind the lantern on a cord.
Dari mano asa niniek kito From where did our ancestors originate?
Dari ateh gunueng Marapi From the top of Mount Merapi.
 VERHANDELINGEN
VAN HET KONINKLIJK INSTITUUT
VOOR TAAL-, LAND- EN VOLKENKUNDE

86

FRANZ VON BENDA-BECKMANN

PROPERTY IN SOCIAL CONTINUITY

CONTINUITY AND CHANGE IN' THE MAINTENANCE
OF PROPERTY RELATIONSHIPS THROUGH TIME
IN MINANGKABAU, WEST SUMATRA

Springer-Science+Business Media, B.V. 1979

ISBN 978-94-017-2802-7 ISBN 978-94-017-2800-3 (eBook)
DOI 10.1007/978-94-017-2800-3

© Springer Science+Business Media Dordrecht 1979

Originally published by Martinus NijhoffPublishers in 1979
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Naga:l'i Candtm.g Kota Lawas

 CONTENTS

ACKNOWLEDGEMENTS XIII

A NOTE ON OR1HOGRAPHY

ABBREVIATIONS XVII

INTRODUCTION

rnAPTER ONE: BASIC ASSUMPTIONS AND HYP01HESES 13

A. The Analytical Frame of Reference: Social Ftmctions 13
B. Social Organization: The Restriction of Society's Members'
Autonomy 18
C. Law 25
I. The Terminological Problem 25
II. The Concept of Law Used in This Study 28
1. The Specification of the Concept 28
2. The Manifestations of Law 31
D. The Social Ftmction of Property and Inheritance 39
I. Property: Domain, Object, and Relationship 39
II. Inheritance: Non-Reciprocal Diachronic Transfers 45

rnAPTER 1WO: SOCio-POLITICAL ORGANIZATION IN MINANGKABAU 57

A. Introduction 57
B. Group Formation and Inter-Group Relationships 61
I. The Constituent Groups 61
1. The Buah Gadcrng and Its Internal Structure 62
2. Subdivision and Cleavage of Buah Gadang 64
II. Other Groups 70
1. The Jurai 70
2. The Rumah 70
3. The Kampuang 71
4. The Pariuak 71
III. Group Formation on More Inclusive Levels and the System
of Inter-Group Relationships 72
 IV. The Territorial Divisions of the Nagari 79
1. The Adat Divisions of CKL 79
2. The Buek Division 79
3. The Sidang System 80
4. The Jorong Division 81
C. The Allocation of Authority 81
I. The Basic Principles of Authority in Minangkabau 81
II. Authority Vested in Social Positions 82
1. Group Leadership 82
2. Authority Vested in Females 83
3. Authority Vested in the Father 84
III. Authority Vested in Offices 85
1 • The Offices of the Buah Gadang 86
2. The Offices of the Hindu System 89
3. The Hierarchical Structure of Social Positions of
Authority 91
IV. Authority Vested in Groups 92
V. Conclusions 93
D. Relationships Between Individuals and Individuals and Groups 94
I. Introductory Note 94
II. The Kin 95
1. Individualizing Reference 96
2. References Involving Group Terms 97
III. Marriage 100
1. The Organization of Marriage 100
2. Rules Affecting the Choice of Marriage Partners 101
3. Divorce 105
4. Relationships Established Through Marriage 105
E. Residence 106
I. Introductory Note 106
II. Domestic Residence 108
III. Political Residence 110
1. Residence in Adat 111
2. Residence in Buek 111
3. Residence in Pusako 112
4. Residence in Jorong 112
IV. Conclusion 112
rnAPTER THREE: 1HE PLURALISTIC SIWATION 113

A. The Systems 113

I. Adat/Adat Law 113
1. Adat 113
2. Adat and Adat Law 116
II. Islamic Law 118
III. Written Law 120
B. The "Existence" of the Legal Systems in Minangkabau 120
I. The Colonial and National Legal System 120
1. Pre-Independence Development 121
2. Post-Independence Development 125
II. The Actual Use Made of the Systems 127
1. The Legal Systems Used by the Courts 127
2. The Use Made of the Systems in the Nagari Institutions
of Decision Making 128
3. The Use Made of the Systems Outside the Formal
Institutions of Decision Making 129
III. The Actualization of the Systems in the Knowledge of the
Minangkabau 129
1. The Knowledge of Written Law 130
2. The Knowledge of Islamic Law 131
3. The Knowledge of Adat 132

rnAPTER FOUR: THE LEVEL OF MEANING: SYSTEM') OF PROPERlY

RELATIONSHIPS IN MINANGKABAU 137

A. Introductory Note 137

B. Adat 138
I. Categories of Property Relationships and Property Objects
in Minangkabau Adat 139
1. The Level of Socio-Political Authority Over Property 140
2. The Category of Pusako 147
3. The Category of Harato 149
II. The Adat Pusako: Acquisition, Use, and Diachronic Transfers
of Property Relationships Based upon Group Membership 150
1. The Pusakoization of Harato Pa:naaharia:n 150
2. The Relationships to the Harato Pusako 152
3. The Relationships to the Pusako Kebesaran 164
III. Transfers of Property Relationships in Minangkabau Adat 167
1. Introductory Note 167
2. Jua BaZi - Selling and Buying 168
 3. Pagang Gadai - The Adat of Pawning 169
4. The Privileged Loans of Haroato Pusako 176
5. The Gift of Harato Panaaharian 180
6. Umanaik, Wasiyat, Hibah-Wasiyat - Testamentary Gifts 181
7. Utang - Debts 181
IV. Analysis of the Adat Pusako 185
1. Corporate Group Structure and Property Relationships
in the Adat Pusako 186
2. The Limitation of the Society's Members' Autonomy 191
3. The Temporal Dimension in Minangkabau Property
Relationships 194
C. Islamic Law 197
I. Mal, Milk - Property and Ownership 197
II. Property Within the Conjugal Family 197
III. Property Transactions and the Prohibition of Riba 198
IV. Hiba- Donation 198
V. Wa~iyya - Testament 199
VI. Walf.f - Property of the Dead Hand 199
VII. Faraidh - Intestate Inheritance 200
VIII. Debts 202
D. Written Law 203
I. The Basic Principles of Dutch Property and Inheritance Law 203
1. Eigendom - Ownership 203
2. Mede-Eigendom - Communal Ownership 204
3. Marital Property Relationships 205
4. Inheritance 206
5. Donation and Contractual Inheritance 207
6. The Restriction of the Individual's Autonomy 208
II. Written Law in Minangkabau Property Relationships 209
1 . The Decree of 1853 Concerning the Pusako-Eigendomsakte 209
2. The Agrarian Act of 1870 210
3. The Ordinance Prohibiting the Alienation of Land 2l1
4. The Declaration of State Domain 211
5. Mortgages 211
6. The Basic Agrarian Law of 1960 212
7. The Marriage Law of 1974 213

rnAPTER FIVE: 1HE LEVEL OF PERFORMANCE I: 1HE FULFILMENT OF 1HE

.FUNCTION 215

A. Introduction 215
B. Stories of Property and Inheritance Affairs 218
I. The Situation in a Kaum 218
1. The History of the Kaum of Dt. Kayo nan Gadang 218
2. The Socio-Political Status of the Groups 223
3. The Property Relationships 225
4 . Surrnnary 233
II. Inter-Kaum Relationships and Property 234
1. The Kaum-Split 235
2. The Punah-Situation 239
3. The Inter-Kaum Pawning Case 249
III. The Extinct Buah Gadang 253
IV. Inter-Strata Relationships 259
1. The Descendants of Slaves and Their Mamak 259
2. The Descendants of Strangers 263
V. The Children - Kamanakan Conflict 265
1. The Disputed Legal Status of Hamto Pancaharian 266
2. The "Impure" Harato Pancaharian 26 7
VI. The Relationships Between the Children 269
C. The Modalities of Diachronic Transfers of Property Relation-
ships in Historical Perspective 274
I. Introductory Note 274
II. The Means of the Holders 275
1. The Means 275
2. The Exercise of Autonomy 278
3. From Status to Contract in Historical Perspective 285
4. The Adaptation of Interpersonal Relationships to
Property Strategies 292
III. The Means of the Would-Be Heirs 300
1 • The Means 300
2. The Legitimation of the Would-Be Heirs' Claims 301
3. The Agents of Validation 305

CHAPTER SIX: THE LEVEL OF PERFORMANCE II: THE PRODUCTION OF

LEGAL CONCEPTIONS IN HISTORICAL PERSPECTIVE 311

A. Introductory Note 311

I. The Production of Legal Conceptions 311
II. Concrete and General Legal Conceptions and the Problem
of Change 314
B. The Clash of the Systems of Property Relationships 318
I. Adat and Western Law 318
 II. Adat and Islamic Law 321
C. The Development of the Adat System: Legal Consequences 326
I. The Recognition of Autonomy in Property Mfairs in
Historical Perspective 328
1 • The Individual's Autonomy Over Harato Panaaharian 328
2. The Autonomy Over Harato Pusako 332
II. Inheritance 335
1 • The Inheritance of Harato Panaaharian in His tori cal
Perspective 335
2. The Pusakoization of Harato Panaaharian 343
3. The Inheritance of Relationships to Harato Pusako 350
D. The Minangkabau Conceptual System of Property Relationships
in Historical Perspective 351
I. Introductory Note 351
II. The Elimination of Diachrony from the Conceptual System
and the Reification of Property Relationships 352

CHAPTER SEVEN: CONCLUSIONS 361

A. The Factors of Change: Concluding Remarks on the Development

in the Domain of Property Relationships in Minangkabau 361
B. The Minangkabau Social System and the Maintenance of Property
Relationships Through Time 373
C. Concluding Note on the Approach Employed 384

NOTES 391

GLOSSARY 429

BIBLIOGRAPHY 437

MAPS
Map of the Research Area IV

-cl~ v
Map of CKL - First Settlements and Territorial Divisions 76
Map of CKL - The Development of the Nagari Territory 144
Map: Distribution of Harato Pusako per Suku in Candung Kota
Lawas 145
Map: The Legal Status of Land 284
 ACOOWLEDGEMENfS

The research of which this study is the first major product was carried
out by my wife Keebet and myself between 1973 and 1975, when I was still
a staff member of the Ethnological Seminar of the University of Zurich,
Switzerland. It was made possible by a generous grant given by the
Kommission zur FoPderung des akademisahen Naahwuahses der Universitat
ZUri.ah and by an additional grant of the Schweizer Nationalfonds.
My wife and I spent several months in the Netherlands for literature
studies, and for three months followed a language course given by drs.
Mellema of the Royal Tropical Institute in Amsterdam and by Mrs.
Padmi Strik. Our field research in Indonesia, which lasted from June
1974 to September 1975, was carried out under the auspices of LIPI, the
Indonesian Institute of Sciences, and under the sponsorship of the
University of West Sumatra in Padang. We are indebted to the Rector,
Dr. Busjra Zahir, and to the Dean of the Legal Faculty, Bunna Burhan S.H.,
who supported our research proposals. We had some helpful discussions
with the staff members of the Legal Faculty. In particular, we wish to
thank sdr. Narullah Dt. Perpatih nan Tuo S.H., who acted as our counter-
part and conductedhisown research-on inheritance law, the results of
which unfortunately are ?till unpublished. The Indonesian government
institutions on all administrative levels kindly assisted us and took a
friendly interest in our research. We would like to thank the Camat of
IV Angkat Candung and the Wali Negeri of Candung Kota Lawas in particular.
We owe special gratitude to the chairmen and staff of the Pengadilan Tinggi
in Padang and of the Pengadilan Negeri in Bukit Tinggi, Batu Sangkar, and
Payaktunbuh who supported our research in a very helpful way. Rasjid
Manggis Dt. Rajo Panghulu and Sinjar Dt. Mangkuto Sati in Bukit Tinggi
spent many hours in helping us to understand Minangkabau adat. The
villagers of Candung Kota Lawas accepted us and our curious questions for
a period of ten months with much understanding and tolerance. In particu-
lar, we would like to thank I tam, who so well understood our wish to learn
XIV PROPERlY IN SOCIAL CONTINUITI

about Minangkabau village life, and Haji Dt. Bagindo Basa, Dt. Malano
Basa, Palimo Putih, and Sidi Katik, without whose help our research would
have been a failure.
We should also like to mention the fellow anthropologists whom we met
in the field and with whom we spent many hours discussing Minangkabau
and the pleasures of field work: Fred Errington, Nigel Phillips, Joanne
Prindiville, Nancy Tanner, and in particular our friends and "neighbours"
in nagari Gurun, Kris and Lynn Thomas. Prof. P.E. de Josselin de Jong
helped us with friendly advice and temporarily very kindly provided us
with some luxurious field equipment. Dr. Junghans and Dr. Haselbarth,
the leaders of two German agricultural development projects working in
West Sumatra, allowed us to make use of some of their material and
assisted us with maps.
I gratefully acknowledge the helpful suggestions and comments made
by Prof. J. Griffiths, Prof. J.P. Holleman, Prof. L.G. Loffler and Lynn
Thomas who read earlier drafts of this study. Prof. J.P. Holleman, Mrs.
G. Moyer and Lynn Thomas also helped me transform my English into a
readable language for which I am very grateful. The responsibility for
any faults and awkward phrases rests, of course, with me. I further
would like to thank Hans Borkent for drawing the diagrams and most maps,
and Ank Everts and Marianne Roest for typing the manuscript.
My wife and I spent endless hours discussing law, Minangkabau adat,
and my study during the last years. I have profited immensely from our
conversations. Fortunately, there are other ways to express my grati-
tude to her than in these acknowledgements.

Leiden, December 1978 Franz von Benda-Beckmann

 A IDlE ON OR1HOGRAPHY

In this study I have regularly used Minangkabau and Indonesian words,

particularly the basic concepts through which the systems of socio-
political organization, property, and inheritance are expressed. I trust
and hope that the reader will quickly accustom her- or himself to these
terms and realize that, e.g., words like jurai, kawn, buah gadang, and
suku convey a much clearer impression of social groups in Minangkabau
than would the English terms lineage, minimal , minor, major, or maximal
lineage.
In the literature, but also in interviews with Minangkabau villagers,
the Indonesian and Minangkabau terms are often used interchangeably,
e.g. harta pusaka (Ind.) or harato pusako (Min.) ~or inherited property.
Combinations of words from the two languages are also quite frequent,
like in harta pusakQ.In order to achieve some standardization, I have in
principle employed the Minangkabau terms; only in direct quotations have
I given the (usually Indonesian) forms. A glossary of Minangkabau and
Indonesian terms is appended to the study (pp. 429-436); in the cases
where Indonesian and Minangkabau words have been used for the same
term, the Indonesian has been inserted in brackets.
With regard to the Indonesian and Minangkabau language in general I
have followed the new orthographic convention which was introduced in
1972. It is contained in a government publication entitled Edjaan Bahasa
Indonesia Jang Disempurnakan. The main changes are set out below.

Old System New System

j y
dj j
tj a
nj ny
sj sy
ah kh
XVI PROPERTY IN SOCIAL CONI'INUI'IY

Except for same direct quotations, I have transcribed all sources

using the old orthographic system into the new one. The glottal stop
in words like mamak has been transliterated with the letter k as has
become customary in contemporary Mi.nangkabau and Indonesian; older
futch writers, by contrast, employed the letter q or an apostrophe.
The rn.unber 2 following an Indonesian or Minangkabau word, like in harta2,
is the conventional abbreviation for the duplication of the word. Ill-
plication generally indicates the plural number or undefined quantities.
In the transcription of Arabic terms I have followed Fyzee (1955).
However, most Islamic legal terms appear in their Indonesianized fonn.
Finally, it should be mentioned that, unless I have indicated
otherwise, all translations from futch or Indonesian sources are mine.
 ABBREVIATIONS

A. Angku
AR Assistent Resident
art. Artikel (section)
B Brother
BGB Burgerliches Gesetzbuch(German Civil Code)
B.W. Burgerlijk Wetboek (Dutch Civil Code)
01 Olildren
CKL Candung Kota Lawas
CPNfR Corops Penasehatan Nikah Thalak Rujuk
(Advisory Committee of the Registrar of
Marriage, Divorce, and Remarriage)
D Daughter
D. Dutch
DPRN Dewan Perwakilan Rakyat Negeri (Elective
Village Parliament)
Dt. Datuk, Datuek (title of higher adat
functionaries, particularly of panghulu)
e elder
F Father
G. German
GSB Gubernur Swnatera Barat(Governor West Sumatra)
ha hectare
I. Inyiek
Ind. Indonesian
I.S. Indische Staatsregeling
Isl. Islamic
KAN Karapatan Adat Nagari (Nagari Adat Council)
KN Kerapatan Negeri (Nagari Council)
KUA Kantor Urusan Agama (Office for Religious
Affairs)
LKAAM LerrU:Jaga Kerapatan Adat Alam Minangkabau
(Association of the Minangakabu Adat Councils)
XVIII PROPER1Y IN SOCIAL CONfiNUI1Y

LR Landraad (Dutch colonial court)

M Mother
MA Mahkamah Agung (Supreme Court)
Min. Minangkabau
MUBES Musyawarah Besar (Full meeting of the LKAANQ
par. Paragraph (section)
PN Pengadilan Negeri (State Court)
pp Peraturan Pemerintah (Government Regulation)
PT Pengadilan Tinggi (State Appeal Court)
P3NfR Pembantu Pegawai Pencatat Nikah Thalak Rujuk
(Village Registrar of Marriage, Divorce,
and Remarriage)
R.B.G. Rechtsreglement voor de Buitengewesten
R.R. Regeringsreglement
RvJ Raad van Justitie (Dutch colonial Appeal Court)
s Son
s. Staatsblad (Government Publication)
SK Surat Keputusan (Provincial Regulation)
WN Wali Negeri (Village Mayor)
y younger
z Sister
 INTRODUCTION

Learn the laws of inheritance and teach them to the people;

for they are one half of useful knowledge.
t·1ohannned (Fyzee 1955: 329)

When the prophet created this aphorism he had in mind the rules of in-
heritance law revealed to him by Allah. We could apply it to social an-
thropology as well sincethe inheritance of property and the succession
to positions of socio-political authority are among the most important
elements of social organization. They are the vehicles of continuity
which maintain property and authority through time. In many societies,
and particularly in those generally studied by anthropologists, inherit-
ance and succession are closely interconnected with kinship and descent
and provide the economic and political substance for the existence and
continuity of kinship- or descent-based social groups. They are, as it
were, the flesh on the bare bones of kinship relations. The importance
of inheritance has, of course, not escaped the notice of social and
legal anthropologists, and in recent years several studies have ably
demonstrated the point (Radcliffe-Brown 1952, Goodenough 1951, Leach
1961 b, Goody 1962, Lloyd 1962, Gray and Gulliver (eds.) 1964, Derrett
(ed.) 1965, Gluckman 1972, Moore 1969, Burling 1974). Yet in general,
property and inheritance have rather been treated as an appendix to
economic and kinship studies. In particular, "methods of inheritance
have received little systematic treatment" (Goody 1962: 11), and "there
are only a few accounts available which give us more than oversimplified
statements" (Pospisil 1971: 347, cf. Moore 1970: 279 f.). This study
attempts both: To make a contribution to the systematic study of inherit-
ance and inheritance law, and to give a detailed statement for one so-
2 PROPERTI IN SOCIAL CONTINUITI
ciety, the Minangkabau.
The Minangkabau inhabit the west coast of Sumatra. The greatest part
of the traditional Minangkabau world, the alam Minangkabau, is today
comprised of the province of West Sumatra of the Republic of Indonesia.
Within the provincial borders, in the Padang Highlands, lies the nucleus
of the Minangkabau world, the darek, which was divided into the three
districts (t.uhak) Tanah Datar, Agatn, and 50 Koto by the legendary rulers
and law-givers Dt. (Datuk) Perpatih nan Sabatang and Dt. Katumanggungan.
Surrounding the darek was the rantau, those areas which, according to
the legendary history transmitted in the tambo-legends, were settled and
colonized by the inhabitants of the darek. The rantau comprised the
Padang lowlands, the coastal plains of West Sumatra in general, and
large parts of the present provinces Riauw and Jarnbi. Together, darek
and rantau extended nearly all over central Sumatra (cf. Nairn 1974: 33
ff., 91 ff.). In the 15th or 16th century, a part of the Malayan penin-
sula, Negri Sembilan, was settled by Minangkabau immigrants and since
then there have been constant relationships between Negri Sembilan and
Minangkabau. Sometime in the 14th century a kingdom was established in
the Padang Highlands. Little is known about the history of the Minangka-
bau kingdom but there is evidence that it had important external and
trade relations with the surrounding areas and islands. But when the
Dutch landed on the west coast in 1600, the coastal plain was under the
controa of Achenese merchant governors .The reports which reached the
outside in the second half of the 17th century all indicated that no
actual power was exercised by the king. The Minangkabau world consisted
of nagari, village states, which seem to have been quite autonomous.
Of the nagari in the darek it was said that they were governed by the
panghulu, the leaders of the nagari matrilineages. The nagari in the
rantau were said to be governed by a raja, a king, possibly a represent-
ative of the King of Minangkabau. The Dutch had ousted the Achenese as
rulers in the main trading centers at the west coast in the second half
of the 17th century. But it was only in the beginning of the 19th centu-
ry that Dutch colonial rule was established in the Padang Highlands and
the three districts. Since the Republic of Indonesia has established a
regular system of administration, the province of West Sumatra is now
subdivided into 8 districts, Kabupaten, which are headed by a Bupati.
Three of these districts more or less correspond to the old "three dis-
tricts" Tanah Datar, Agam,and 50 Koto. Each Kabupaten is divided into
5 to 10 subdistricts, Keaamatan, headed by a Camat. The Keaamatan con-